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WOMAN’S  SUFFRAGE  TRACTS.  NO.  8. 


THE 

LEGAL  CONDITION  OF  WOMEN 

IN  MASSACHUSETTS. 


BY 

SAMUEL  E.  SEWALL. 


BOSTON: 

FOR  SALE'  BY  C.  K.  WHIPPLE,  43  BOWDOIN  STREET. 

1869. 


334, a. 

Se 


THE  LEGAL  CONDITION  OF  WOMEN 
.  IN  MASSACHUSETTS. 


My  object,  in  the  following  pages,  is  to  present  an  outline  of  the 
law  of  Massachusetts  affecting  women,  as  distinguished  from  men, 
with  occasional  comments.  The  law  of  this  commonwealth,  how¬ 
ever,  is  so  like  that  of  most  of  the  States,  that  the  greater  part  of 
what  I  write  will  apply  to  many  of  the  others. 

Nothing  more  than  a  mere  sketch,  and  that  an  imperfect  one,  is 
possible  within  the  limits  that  I  propose.  I  shall  aim  to  present  the 
most  important  features  of  the  system  ;  though  even  of  these  many 
of  the  qualifications,  distinctions,  and  exceptions  will  be  necessarily 
passed  without  notice.  A  large  and  instructive  volume  in  regard  to 
the  subject  might  be  written. 

Most  people  have  a  general  idea  of  the  legal  disabilities  of  the 
female  sex.  But  very  few,  except  lawyers,  understand,  in  their  full 
extent,  the  oppression  and  annoyance  to  which  our  system  subjects 
women,  until  some  hard  case  directs  their  attention  to  a  particular 
form  of  this  injustice. 

The  Declaration  of  Independence  proclaims  that  “  all  men  are 
created  equal”  and  have  unalienable  rights.  We  all  admit  this. 
And  it  is  conceded  that  the  word  “  men  ”  here  includes  persons  of 
^both  sexes,  and  the  word  “  equal  ”  means  equality  of  rights,  not  of 
capacity. 

When  Jefferson  wrote  these  words,  which  have  been  cited  many 
^  thousands  of  times,  and  can  never  be  too  deeply  impressed  upon  us, 
^he  was,  no  doubt,  far  from  thinking  of  all  the  applications  of  the 
truth  he  was  publishing. 

The  Constitution  of  Massachusetts,  following  the  Declaration, 
'Isays,  “  All  men  are  born  free  and  equal,”  and  have  unalienable 
Tights. 

The  Constitution  of  Massachusetts  denies  suffrage  to  woman,  and 

3 


372968 


4 


THE  LEGAL  CONDITION 


thus  is  inconsistent  with  itself,  and  also  violates  the  great  principle 
of  the  Declaration  of  Independence,  the  organic  law  of  the  nation, 
by  giving  man  a  great  right  and  privilege,  and  refusing  it  to  her 
who  is  entitled  to  it  as  his  equal. 

The  denial  of  this  franchise  is  the  most  serious  wrong  done  to 
women,  since  granting  them  the  ballot  would,  no  doubt,  lead  eventu¬ 
ally  to  the  redress  of  their  other  wrongs. 

This  refusal  of  the  ballot  perpetuates  the  stigma  and  badge  of 
inferiority  on  more  than  one  half  of  the  whole  population  of  the 
State.  The  effect  of  this  disability  is  obvious.  We  look  upon  the 
ballot  as  one  of  the  great  educators  of  male  citizens,  because  it  inte¬ 
rests  them  in  public  affairs,  and  leads  them  to  consider  and  discuss 
important  questions  of  legislation.  Our  constitution  not  only  shuts 
out  this  great  avenue  of  education  from  our  female  citizens,  but  the 
legal  inferiority  tends  in  every  direction  to  produce  the  mental  infe¬ 
riority  which  it  presupposes.  It  cramps  thought,  and  paralyzes 
effort. 

The  secondary  effects  of  this  disability  are  equally  if  not  more 
disastrous.  Men  fall  short  of  the  high  character  which  would  be 
infused  into  them  through  the  superior  moral  and  intellectual  power 
which  women  would  acqu’re  in  consequence  of  gaining  the  great 
franchise.  Our  legislation  is  degraded,  and  our  society  debased, 
because  the  two  sexes  do  not  associate  as  equals  in  the  most  impor¬ 
tant  business  of  the  nation. 

It  is  hardly  necessary  to  add,  that  to  deprive  any  class  of  persons 
who  pay  taxes  of  the  right  of  voting  violates  the  principle  for 
which  our  fathers  contended  during  the  revolution,  that  Taxation 
without  Representation  is  Tyranny.  Thousands  of  women  pay 
taxes  in  Massachusetts,  some  of  them  very  large  ones  (in  Boston 
alone  they  are  taxed  on  twenty-eight  millions  of  real,  and  thirteen 
millions  of  personal  property)  ;  yet  they  have  no  voice  in  direct¬ 
ing  the  appropriation  of  their  money,  are  compelled  to  submit 
to  enactments  from  which  their  moral  instinct  revolts,  and  have  no 
power  to  urge  effectually  reforms  which  they  believe  to  be  all-im- 
portant.  Since  women  are  not  allowed  to  vote,  they  are  generally 
considered  ineligible  to  any  public  office,  and  incapable  of  holding 
any  by  appointment  of  the  governor.  I  am  far  from  assenting  to 
this  view  of  the  law  ;  for,  in  my  opinion,  any  person,  even  an  alien 
or  a  woman,  is  legally  capable  of  holding  any  office,  unless  express¬ 
ly  prohibited  by  the  constitution  or  statutes. 

Practically,  women  are  disabled  from  holding  many  offices  which 
even  those  who  think  them  unfit  for  others  often  readi.y  admit  them 
to  be  admirably  qualified  for.  Far  the  greater  part  of  the  pubic 


OF  WOMEN  IN  MASSACHUSETTS . 


5 


school-teachers  in  Massachusetts  are  female.  Male  teachers  are  hut 
a  small  fraction  of  the  whole  number.  Yet  we  find  no  woman  on 
the  Board  of  Education  or  School  Committees,  with  scarcely  an 
exception. #  or  on  the  Board  of  Trustees  of  the  State  Industrial 
School  for  Girls  at  Lancaster.  Can  any  one  fail  to  see  that  expe¬ 
rienced  matrons,  who  have  themselves  been  teachers,  would  be 
excellent  official  visitors,  to  aounsel  and  encourage  their  younger 
sisters,  who  are  laboring  in  the  same  arduous  vocation,  and  to  cheer 
and  animate  the  pupils  by  their  words  and  smiles? 

No  woman  is  to  be  found  on  the  Board  of  State  Charities,  or  as 
an  Overseer  of  the  Poor,  or  as  a  Trustee  of  a  Lunatic  Hospital. 
Yet  the  warm  sympathy  which  women  feel  for  the  sick  and  poor,  to 
say  nothing  of  their  other  qualifications,  would  make  them  very 
useful  in  these  positions. 

Women  pay  no  poll-tax,  and  are  not  required  to  serve  in  the 
militia.  These  are  proper  exemptions  at  the  present  time.  When 
legal  equality  is  given  to  the  sexes,  women  ought  to  pay  a  poll-tax. 
They  can  never  perform  military  duty. 

The  statute  exempts  from  taxation  property  to  the  amount  of 
$500.00,  of  a  widow  or  unmarried  female,  and  of  any  female  minor 
whose  father  is  deceased ;  if  her  whole  estate  not  otherwise  ex¬ 
empted  from  taxation  does  not  exceed  $1,000.00. 

Women  are  not  allowed  to  serve  on  juries.  This  may  be  regarded, 
either  as  an  exemption  or  a  disability.  Yet  it  is  very  clear  that 
there  are  cases  in  which  women  ought  to  be  compelled  to  serve  as 
jurors. 

No  woman  can  be  arrested  on  any  civil  process,  except  for  tort. 

I  do  not  propose  here  to  discuss  the  great  questions,  whether  the 
two  sexes  should  pursue  all  branches  of  study  together,  or  what  is 
the  best  liberal  education  for  females.  But  the  inequality  of  the 
position  of  the  two  sexes  in  respect  to  educational  advantages  is  very 
striking. 

There  are  no  colleges  in  Massachusetts  open  to  women.  They 
are  also  denied  admission  into  medical  and  theological  schools. 
Though  they  have  the  greatest  zeal  and  aptitude  for  the  study  of 
medicine  and  theology,  and  become  useful  physicians  and  ministers 
of  the  gospel,  yet  they  are  obliged  to  qualify  themselves  for  these 
professions  under  the  greatest  difficulties. 

*  *  happy  to  say  that  Monroe,  the  smallest  town  in  the  State,  has  enjoyed  the 
privilege  of  having  a  lady  on  its  School  Committee  for  several  years;  and  that,  in 
1868 ,  Reading  chose  three  ladies  members  of  its  School  Committee.  Since  this  tract 
was  finished,  the  city  of  Worcester,  which  for  population,  wealth,  intelligence,  and 
™mire,  is  one  of  the  most  important  places  in  Massachusetts,  has,  in  December, 
1868,  chosen  two  ladies  on  its  School  Committee. 

1* 


6 


THE  LEGAL  CONDITION 


So  far  I  have  considered  the  law  as  it  relates  equally  to  both 
classes  of  females,  the  married  and  unmarried.  I  now  come  to  the 
law  relating  to  married  women. 

To  show  the  present  state  of  the  law  on  this  subject,  I  am  com¬ 
pelled  to  exhibit  some  of  the  provisions  of  the  English  common 
law.  This  is  the  fountain  from  which  the  law  in  almost  all  our 
States  has  sprung.  This  is  what  it  was,  with  very  little  change, 
thirty  years  ago.  The  greater  part  of  the  States  have  by  legislation 
made  astonishing  improvements  on  it  since  that  period.  The  com¬ 
mon  lawT  held  the  man  and  wife  to  be  one  person ;  not,  to  be  sure, 
in  any  high  spiritual  sense,  as  the  harmonious  union  of  two  souls ; 
but  as  signifying,  that  after  marriage  the  husband  was  the  one  per¬ 
son  for  both,  and  the  wife  nothing.  So  entire  was  the  annihilation 
of  the  wife,  that  an  old  law-writer,  referring  to  Hoop’s  fable,  calls 
marriage  leonina  societas ,  a  leonine  partnership,  of  which  the  hus¬ 
band  has  all  the  profits,  and  the  wife  none. 

By  marriage,  all  the  wife’s  personal  property,  of  every  .descrip¬ 
tion,  became  absolutely  vested  in  the  husband,  even  her  clothes  and 
jewels. 

It  is  true  that  the  wife’s  choses  in  action,  that  is,  rights  of  action, 
such  as  debts  due  to  her,  if  they  were  not  reduced  to  possession  by 
him,  would,  if  she  survived  him,'  still  be  hers. 

He  became  also  the  owner  of  ail  her  real  estate,  and  received  the 
rents  and  profits,  of  it,  certainly  during  their  joint  lives;  and,  if  he 
survived  her,  he  retained  the  real  estate  during  his  Lfe,  in  case 
they  had  had  any  child  bom  alive. 

All  the  earnings  of  the  wife,  as  long  as  the  union  lasted,  be¬ 
longed  to  the  husband. 

Not  being  a  person  recognized  by  the  lawT,  she  was  absolutely 
incapable  of  making  any  contract.  Every  contract  she  made  was 
null  and  void. 

For  the  same  reason,  she  could  make  no  will,  not  even  of  the 
legal  interest  she  still  retained  in  her  real  estate.  She  could  bring 
no  action  in  any  court  for  any  injury  to  her  person,  her  character, 
or  her  property,  without  her  husband’s  consent,  and  joining  in  the 
suit. 

The  husband  had  the  sole  right  to  the  custody  of  the  minor  chil¬ 
dren. 

He  had  also  the  control  and  custody  of  her  person,  though  bound 
to  exercise  this  power  in  a  reasonable  manner.  This  was  fully  rec¬ 
ognized,  even  at  a  very  recent  period  in  England,  in  a  case  where, 
the  wife  had  been  confined  by  her  husband  at  his  lodgings.  By  a 
habeas  corpus  she  was  brought  before  the  Court  of  Queen  s  Bench, 


OF  WOMEN  IN  MASSACHUSETTS. 


7 


which  remanded  her  to  her  husband’s  custody,  on  the  ground  that 
this  was  a  reasonable  exercise  of  his  authority  if  he  thought  she 
would  make  an  improper  use  of  her  liberty.  Thus  the  husband  is 
made  the  judge,  jury,  and  jailer  of  his  wife.  He  settles  the  law, 
tries  the  facts,  and  executes  the  sentence  himself. 

Neither  husband  nor  wife  could  be  witnesses  for  or  against  each 
other  in  any  court. 

The  common  law,  however,  did  not  absolutely  forget  the  wife  ; 
for  it  made  the  husband  liable  for  her  debts  contracted  before  mar¬ 
riage,  and  compelled  him  to  maintain  her  in  a  manner  suitable  to 
his  station  and  ability. 

Among  the  wealthy,  the  severity  of  the  common  law  in  England, 
and  to  some  extent  in  this  country,  has  long  been  mitigated  by  mar¬ 
riage-settlements,  which  enable  wives  independently  of  their  hus¬ 
bands,  through  the  intervention  of  trustees, r  to  have  the  absolute 
control  of  the  income,  and  sometimes  even  of  the  capital  of  their 
property.  We  all  know,  too,  that  the  great  majority  of  English 
and  American  wives  have  long  been  placed  incomparably  higher  in 
the  social  scale  than  their  legal  condition  would  indicate.  But 
when  a  selfish  and  brutal  husband,  either  in  the  higher  or  lower 
ranks,  chose  to  exercise  the  tyrannical  power  vested  in  him  by  the 
law,  the  condition  of  the  wife  was  worse,  if  possible,  than  that  of  a 
slave  on  a  Southern  plantation.  He  could  steal  her  children,  rob 
her  of  her  earnings,  and  neglect  to  give  her  that  maintenance  which 
the  law  requires  of  him.  Practically  she  often  had  no  sufficient 
redress  for  this  neglect. 

The  improvement  in  the  law  regulating  the  matrimonial  relation 
has  been  so  marked  and  rapid  in  almost  all  of  the  Northern  and 
some  of  the  Southern  States,  that  it  affords  a  glorious  augury  for 
the  future  in  all  that  relates  to  woman’s  legal  condition.  In  Mas¬ 
sachusetts,  the  progress  made  is  very  gratifying,  as  is  apparent  from 
the  following  summary  of  the  present  law  affecting  married  women 
when  it  is  compared  with  the  older  law.  Such  property  of  women 
married  before  1855,  when  the  great  improvement  in  our  law  was 
made,  as  had  already  vested  in  their  husbands,  could  not  be  taken 
from  the  husbands ;  but  even  this  class  was  greatly  benefited  by  the 
changes  in  the  law. 

In  order  to  present  our  law  with  greater  accuracy,  I  shall,  to 
a  great  extent,  adopt  the  words  of  the  General  Statutes. 

The  property,  real  and  personal,  which  any  married  woman  now 
owns  as  her  separate  property  ;  that  which  comes  to  her  by  descent, 
devise,  bequest,  gift,  or  grant ;  that  which  she  acquires  by  her  trade, 
business,  labor,  or  services,  carried  on  or  performed  on  her  separate 


8 


TIIE  LEGAL  CONDITION 


account*  or  received  by  her  for  releasing  her  dower  by  a  deed  exe¬ 
cuted  subsequently  to  a  conveyance  of  the  estate  of  her  husband ; 
that  which  a  woman  married  in  this  State  owns  at  the  time  of  her 
marriage,  and  the  rents,  issues,  profits,  and  proceeds  of  all  such 
property,  —  are,  notwithstanding  her  marriage,  her  separate  property, 
and  may  be  used,  collected,  and  invested  by  her  in  her  own  name, 
and  arc  not  subject  to  the  control  of  her  husband,  or  liable  for  his 
debfs. 

A  married  woman  may  sell  and  convey  her  separate  property, 
enter  into  any  contracts  in  reference  to  the  same,  cany  on  any  trade 
or  business,  and  perform  any  labor  or  services  on  her  separate  ac¬ 
count,  and  sue  and  be  sued  in  all  matters  having  relation  to  her 
separate  property,  business,  trade,  services,  labor,  and  earnings,  as  if 
she  were  sole.  But  no  conveyance  by  her  of  shares  in  a  corpora¬ 
tion,  or  of  any  real  property,  except  a  lease  for  a  term  not  exceeding 
one  year,  and  a  release  of  dower  executed  subsequently  to  a  con¬ 
veyance  of  the  estate  of  her  husband,  is  valid  without  his  assent  in 
writing,  or  his  joining  with  her  in  the  conveyance,  or  the  consent  of 
one  of  the  judges  of  the  Supreme,  Superior,  or  Probate  Court,  granted 
on  account  of  the  sickness,  insanity,  or  absence  from  the  State,  of 
her  husband,  or  other  gGod  cause. 

A  married  woman,  however,  who  comes  into  this  State  without 
her  husband,  he  never  having  lived  with  her  here,  has  the  same 
power  of  making  contracts,  conveying  property,  and  bringing  suits, 
as  if  she  were  unmarried,  and  the  same  capacity  for  being  sued. 

The  provisions  of  the  following  two  sections  affect  principally 
women  married  before  June  3,  1855. 

A  wife  abandoned  by  her  husband,  who  has  left  the  State,  and 
does  not  sufficiently  maintain  her,  or  whose  husband  is  confined  in 
the  State  Prison,  may  be  authorized  by  the  Supreme  Court  to  sell 
and  receipt  for  her  real  and  personal  property,  and  any  personal 
estate  which  may  have  come  to  her  husband,  and  any  which  he  is 
entitled  to  by  reason  of  the  marriage,  and  to  use  the  property  and 
its  proceeds  as  if  unmarried.  She  may  also  get  full  power  to  sue 
and  be  sued,  as  if  unmarried. 

The  real  estate  and  shares  in  any  corporation  standing  in  the 
name  of  a  married  woman,  which  were  her  property  at  the  time  of 
her  marriage,  or  which  became  her  property  by  devise,  bequest,  or 
gift  of  any  person  except  her  husband,  are  not  liable  to  be  taken 
on  execution  against  her  husband  for  any  debt  contracted  or  cause 
of  action  arising  after  June  3,  1855. 

A  married  woman  having  separate  property  may  be  sued  for  any 
cause  of  action  which  originated  against  her  before  marriage  ;  and 


OF  WOMEN  IN  MASSACHUSETTS . 


9 


her  property  may  be  attached  and  taken  on  execution  as  if  she  were 
sole.  The  husband  of  a  woman  married  in  this  State,  after  June 
3,  1855,  is  not  liable  to  be  sued  for  any  cause  of  action  which  ori¬ 
ginated  against  her  before  marriage  ;  but  she  is  Lable  to  be  sued  for 
the  same. 

A  married  woman  may  make  a  will  of  her  real  and  separate 
personal  estate,  in  the  same  manner  as  if  she  were  sole  ,  but  such 
will  does  not  operate  to  deprive  her  husband  of  more  than  one  half 
of  her  personal  property  without  his  consent  in  writing ;  nor  can  it 
take  away  his  life  interest  in  her  real  estate,  if  they  have  had  a  liv¬ 
ing  child. 

Where  the  parents  of  children  live  separate,  whether  divorced  or 
not,  the  court  can  regulate  the  custody  and  maintenance  of  the 
children,  and  determine  with  which  of  the  parents  the  children  or 
any  of  them  shall  remain  ;  “  and  the  rights  of  the  parents,  in  the 
absence  of  misconduct,  shall  be  held  to  be  equal.’ 

I  say  nothing  here  of  the  law  of  divorce,  so  far  as  it  appears  to 
be  equal  for  both  parties  (though  the  wife  has  the  deeper  interest 
in  it)  ;  for  the  discussion  of  such  a  topic  opens  too  wide  a  field. 
One  provision  of  the  law  of  divorce,  however,  is  especially  for  the 
wife’s  benefit.  She  can  get  a  divorce  from  bed  and  board,  when 
her  husband,  being  cf  sufficient  ability,  grossly  or  wantonly  and 
cruelly  refuses  or  neglects  to  provide  suitable  maintenance  for 
her.* 

The  following  provisions  regarding  divorce  show  with  what  an 
unequal  eye  the  statute  regards  the  two  sexes  in  case  of  equal 
criminality  :  — 

When  a  divorce  is  decreed  on  account  of  the  wife’s  adultery, 
the  husband  holds  her  “  personal  estate  forever,”  and  her  real 
estate  to  the  same  extent  as  if  she  were  dead  ;  “  but  the  court  may 
decree  to  the  wife,  for  her  subsistence,  as  much  of  her  personal  or 
real  estate,  or  of  the  income  thereof,  as  it  deems  necessary.” 

When  a  divorce  is  decreed  on  account  of  the  husband’s  adultery, 
the  wife  becomes  entitled  to  her  dower  as  if  he  were  dead,  and  to  the 
immediate  possession  of  her  real  estate ;  and  the  court  may  award 
her  the  whole  or  any  part  of  the  personal  property  that  came  to  the 
husband  by  reason  of  the  marriage  ;  and  in  addition,  if  what  she 


*  I  hope  I  shall  he  pardoned  for  denouncing  in  a  note  all  divorces  from  bed  and 
board,  as  apt  devices  for  encouraging  licentiousness.  Every  divorce  should  be  from 
the  bonds  of  matrimony ;  and  every  cause  for  a  legal  separation  should  be  enough 
to  secure  such  a  divorce.  Neither  men  nor  women  should  be  legally  separated  from 
their  spouses,  and  at  the  same  time  refused  the  power  of  forming  new  legal  mar¬ 
riages.  Where  they  cannot  do  it,  they  too  frequently  enter  into  marriages  which  the 
law  pronounces  illegal,  or  form  still  more  degrading  connections. 


10 


THE  LEGAL  CONDITION 


thus  receives  is  insufficient  for  the  suitable  maintenance  and  support 
of  herself  and  such  children  of  the  marriage  as  are  committed  to 
her  custody,  the  court  may  further  decree  her  such  part  of  the 
husband’s  personal  estate,  and  such  alimony  out  of  his  estate,  as  it 
deems  just  and  reasonable. 

I  shall  say  nothing  as  to  the  proper  treatment  of  the  guilty  party 
in  cases  of  this  kind.  But  mark  how  severely  the  statute  deals 
with  the  woman,  how  leniently  with  the  man.  She,  when  he  is 
guilty,  gets  a  life-estate  in  one-third  of  his  real  estate  ;  he,  when 
she  is  guilty,  gets  possession  of  all  her  real  estate,  subject,  it  is 
true,  to  such  part  as  the  court  may  decree  her.  She,  if  guilty,  for¬ 
feits  to  him  all  her  personal  property,  though  the  court  may  decree 
her  an  allowance  out  of  it ;  he,  if  guilty,  forfeits  nothing  to  her, 
though  the  court  may  make  a  decree  giving  her  a  part  of  his 
estate.  In  short,  she,  if  guilty,  can,  under  the  most  favorable  cir¬ 
cumstances,  retain  only  a  naked  subsistence  out  of  her  property ; 
while  he,  if  guilty,  may  still  retain  the  bulk  of  his  wealth,  and 
live  in  affluence. 

Many  persons  imagine  that  our  laws  have  already  done  every 
thing  necessary  to  remove  the  legal  incapacity  of  married  women. 
But  a  little  examination  will  show,  that,  much  as  has  been  done, 
much  still  remains  to  do,  and  that  the  feudal  system  still  blights 
the  marriage  relation. 


J 


Though  a  married  woman  may  enter  into  any  contracts  in  refer¬ 
ence  to  her  separate  property,  carry  on  any  trade,  &e.,  and  sue 
and  be  sued  in  all  matters  having  relation  to  her  separate  property, 
&c.,  yet  she  still  moves  in  fetters.  She  can  make  no  contract,  and 
bring  no  suit,  unless  it  has  a  relation  to  her  separate  property  and 
business.  She  cannoj  borrow  money,  op  make  a  note  or  a  contract 
for  the  purchase  of  any  thing,  unless  for  the  purposes  of  her  trade 
or  business.  Her  husband’s  consent  would  not  give  her  capacity. 
He  could  bind  himself  for  her.  She  cannot  bind  herself  as  surety 
for  any  purpose.  She  cannot  bring  a  suit  for  any  injury  to  her 
person  or  her  character.  When  husband  and  wife  jar,  and  live 
separate,  this  is  sometimes  a  serious  evil,  if  he  is  not  willing  to 
join  with  her  in  an  action. 

This  incapacity  of  wives  to  contract  is  occasionally  abused  for 
fraudulent  purposes.  Married  women,  having  property,  sometimes 
refuse  to  pay  for  purchases  they  have  made,  and  cannot  be  com¬ 
pelled  to  pay,  because  the  articles  are  not  bought  to  be  used  about 
their  property,  or  in  their  trade  or  business. 

The  common  law  still  appears  to  prevail,  which  makes  the  husband 
liable  for  any  actionable  wrong  done  by  the  wife. 


/ 


f 


f 


OF  WOMEN  IN  MASSACHUSETTS . 


11 


A  wife,  as  we  have  seen,  cannot  convey  real  estate,  or  shares  in  a 
corporation,  without  her  husband’s  assent  in  writing,  or  joining  in  the 
conveyance. 

I  object  entirely  to  this  interfering  with  the  free  action  of  wives, 
as  if  they  were  children.  The  provision  probably  was  intended  in 
good  faith  for  the  protection  of  married  women.  But  it  is  entirely 
opposed  to  the  principle  of  the  statute,  which  is,  that  a  person  who 
is  competent  before  marriage  to  take  charge  of  her  property  is  not 
less  competent  afterwards.  A  woman  who  is  happily  married  can 
always  have  her  husband’s  advice  when  she  needs  it  if  he  is  pre¬ 
sent.  But  when  a  woman’s  husband  is  absent,  whether  he  has 
deserted  her  or  not,  or  when  from  any  cause  she  does  not  wish  to 
ask  his  consent  or  advice,  why  should  she  be  compelled  to  ask  it 
any  more  than  if  she  were  his  mother,  daughter,  or  sister  ?  Noth¬ 
ing  can  be  plainer  than  that  this  perpetual  tutelage  of  married  wo¬ 
men  tends  to  weaken  all  their  powers  of  judgment  and  action,  to 
make  them  children  by  treating  them  as  such. 

Cases  illustrative  of  the  inconvenience  and  annoyance  occasioned 
by  this  provision  of  the  law  have  sometimes  fallen  under  my  notice. 
I  mention  one.  A  woman,  who  had  left  her  husband  on  account  of 
his  ill  treatment  of  her,  had  a  daughter,  the  fruit  of  a  previous  mar¬ 
riage.  She  had  a  little  money,  which  she  wished  to  secure  to  her 
daughter  in  case  of  her  death.  How  could  she,  in  that  contin¬ 
gency,  prevent  it  from  becoming  her  husband’s?  If  she  invested 
in  personal  property,  she  could  not  by  will,  if  he  survived  her,  pre¬ 
vent  his  getting  one-half.  She  determined  to  buy  real  estate,  to 
which  he  would  have  no  claim,  as  they  had  had  no  children.  But 
here  another  difficulty  occurred  :  she  would  have  to  mortgage  the 
estate  for  a  part  of  the  price,  and  she  knew  her  husband  would 
never  consent  to  sign  the  mortgage. 

Another  example  of  the  serious  inconvenience  occasioned  by  the 
present  state  of  the  law  occurs  to  me.  A  married  woman  owns 
shares  in  a  bank  or  railroad  company  which  she  wishes  to  sell ;  but 
her  husband  may  have  deserted  her,  or  may  be  in  a  foreign  country, 
or  may  be  incapacitated  by  disease,  or  may  unreasonably  refuse  his 
consent  to  her  selling.  Then  the  poor  wife  is  driven  to  the  delay, 
vexation,  and  expense  of  legal  proceedings  to  get  authority  to  sell 
from  a  judge.  This  is  no  rare  or  imaginary  evil,  but  one  of  real 
and  common  occurrence. 

The  unequal  condition  of  the  wife  and  the  husband  is  apparent 
in  case  of  the  death  of  either.  If  the  wife  die,  leaving  no  will, 
the  husband,  has  the  whole  of  her  personal  property,  and,  if  they 
have  had  a  living  child,  her  real  estate  during  his  life.  If  she  die 


12 


THE  LEGAL  CONDITION 


intestate,  leaving  no  kindred,  he  takes  her  real  estate  in  fee.  By 
will,  as  before  stated,  she  may  deprive  her  husband  of  one-half  of 
her  personal  property. 

If  the  husband  die  without  a  will,  but  leaving  issue,  the  wife  is 
entitled  to  one-third  of  his  personal  property  absolutely,  and  her 
dower,  which  is  a  life  interest  in  one-third  of  all  the  real  estate  of 
which  he  had  been  seized  during  his  life.  Whether  he  leaves  a  will 
or  not,  she  is  always  entitled  to  such  an  allowance  from  his  estate  as 
the  Probate  Court,  having  regard  to  all  the  circumstances  of  the 
case,  may  allow  as  necessaries  for  herself  and  the  family  under  her 
care,  besides  the  use  of  his  house  and  furniture,  and  sufficient  pro¬ 
visions  and  other  articles  for  the  reasonable  sustenance  of  his  family 
for  forty  days.  This  provision  for  widows,  where  the  estate  of  the 
deceased  is  small  or  insolvent,  as  is  generally  the  case,  is  often  very 
important.  If  the  husband  leave  a  will,  and  his  widow  waive  the 
provisions  of  it,  she  has  the  same  legal  rights  as  if  he  died  intestate, 
provided,  that  if  her  third  of  the  personal  estate  exceed  $10,000, 
she  takes  $10,000  and  is  only  entitled  to  the  income  of  the  rest  of 
her  third  for  life. 

When  a  man  dies  intestate,  leaving  no  issue,  the  widow  is  entitled 
for  life  to  one-half  the  real  estate  of  which  he  was  seized  at  the  time 
of  his  death ;  and  to  the  whole  of  his  personal  property  to  the 
amount  of  five  thousand  dollars,  and  to  one-half  the  excess  of  it 
over  ten  thousand  dollars ;  and,  if  he  leave  no  kindred  what¬ 
ever,  then  she  inherits  absolutely  his  whole  property,  real  and 
personal. 

The  provisions  just  stated  are  much  in  advance  of  the  old  law, 
which  allowed  the  husband  to  will  all  his  personal  property  away, 
without  leaving  any  thing  to  his  widow,  even  if  it  all  had  belonged 
to  her  before  marriage.  The  inequality  between  the  husband  and 
wife,  however,  is  still  manifest.  Why  should  they  not  be  equal  ? 
The  wife  usually  needs  the  husband’s  property  more  than  he  needs 
hers.  And  if  the  one  who  dies  leave  children,  those  children  are 
as  much  entitled  to  a  share  of  the  property  left  whether  they  have 
lost  a  father  or  mother. 

If  a  man  or  woman,  at  the  time  of  marriage,  has  a  large  property 
which  it  is  desired  to  take  out  of  the  general  law,  it  can  be  done  by 
a  marriage-settlement.  But,  where  there  is  no  settlement,  the  hus¬ 
band  and  wife,  in  case  of  the  death  of  either,  ought  to  have  equal 
claims  on  the  property  of  the  deceased. 

One  provision  for  widows  deserves  mention.  If  the  husband 
gains  a  homestead  right,  —  that  is,  a  right  to  have  the  estate  on 
which  he  resides,  to  the  extent  of  eight  hundred  dollars,  free  from 


OF  WOMEN  IN  MASSACHUSETTS. 


13 


t 


ali  liability  for  his  debts, — his  widow  retains  the  estate,  with  the 
same  right,  till  she  dies,  or  marries  again. 

If  a  son  or  daughter  of  full  age  die  intestate,  leaving  no  issue, 
the  father  inherits  all  the  property  of  the  deceased,  to  the  exclusion 
of  the  mother,  sisters,  and  brothers.  In  case,  however,  the  father 
be  dead,  the  property  is  divided  equally  between  the  mother  and 
the  surviving  brothers  and  sisters.  The  theory  of  the  law  of  inher¬ 
itance  is,  to  give  the  intestate’s  property  to  those  to  whom  in  a 
majority  of  cases  he  would  be  likely  to  leave  it.  Now,  every  one 
knows,  that  nineteen  persons  out  of  twenty,  dying  without  leaving 
issue,  would  desire  a  part,  at  least,  of  their  property  to  go  to  their 
mothers.  Yet  the  law  violates  this  principle  in  favor  of  the  obso¬ 
lescent  notion  of  the  person  of  the  wife  being  absorbed  in  the 
husband.  As  long  as  the  wife  was  incapable  of  owning  personal 
property,  the  law  was  consistent ;  for  it  would  have  been  a  mere 
farce  to  give  her  property  as  a  mother,  which,  as  soon  as  it  vested  in 
her,  would  become  her  husband’s.  Now  that  she  is  capable,  the 
law  should  regard  her  as  a  person  in  all  relations. 

By  the  common  law,  if  an  unmarried  woman  who  is  an  executrix, 
administratrix,  or  guardian  marry,  her  powers  in  that  capacity 
devolve  on  her  husband.  But  by  statute  in  Massachusetts,  in  such 
ease  not  only  do  her  functions  cease,  but  they  are  not  devolved  on 
her  husband,  and  a  new  person  has  to  be  appointed  in  her  place. 
By  the  English  law,  too,  a  married  woman  could,  with  her  husband’s 
consent,  accept  the  office  of  executrix  or  administratrix.  He, 
however,  would  act  for  her.  The  law,  as  administered  in  Massachu¬ 
setts,  is  more  unfavorable  for  married  women.  Here  a  wife  who  is 
appointed  executrix  or  trustee  by  will  is  not  allowed  to  act  as  such, 
nor  can  she  be  an  administratrix  or  guardian  under  any  circum¬ 
stances. 

The  wishes  of  friends  who  have  confidence  in  their  married 
female  relations  are  often  frustrated  by  the  absurd  provisions  of 
our  law.  A  man  seeks  to  make  a  married  sister  executrix  of  his 
will,  or,  having  lost  his  wife,  desires  his  sister  to  be  guardian  of  his 
children.  But  he  cannot  do  it,  though  a  maid  or  a  widow  is 
abundantly  competent  for  such  trusts.  A  woman  who  marries  a 
second  time  not  only  cannot  be  guardian  of  her  own  children  by  the 
first  marriage,  but  she  cannot  claim  even  the  custody  of  their  per¬ 
sons  or  the  care  of  their  education.  I  copy  the  statute  provision, 
which  seems  to  me  nothing  less  than  atrocious  :  — 

The  guardian  of  a  minor  shall  have  the  custody  and  tuition  of 
his  ward,  and  the  care  and  management  of  all  his  estate.,  But  the 
father  of  the  minor  if  living,  and  in  case  of  his  death  the  mother 


2 


14 


THE  LEGAL  CONDITION 


\ 


while  she  remains  unmarried ,  they  being  respectively  competent 
to  transact  their  own  business,  shall  be  entitled  to  the  custody*  of 
the  person  of  the  minor,  and  the  care  of  his  education.  ” 

A  husband  is  always  entitled  to  administration  on  his  wife’s  es¬ 
tate  ;  but  the  Probate  Court  may  grant  administration  of  the  hus¬ 
band’s  to  his  widow,  next  of  kin,  or  both. 

A  father  may  appoint  a  testamentary  guardian  to  his  minor  chil¬ 
dren  :  a  widow  cannot  by  will  appoint  a  guardian  to  hers. 

The  Supreme  Court  decided  that  a  husband,  under  the  new  law, 
could  not  form  a  business  partnership  with  his  wife.  The  legisla¬ 
ture  has  since  ordered  that  no  married  woman  should  carry  on 
business  in  partnership  with  any  one  ;  thus  taking  a  backward  step. 

Another  remnant  of  the  old  law  requires  notice.  A  husband 
could  not  make  a  deed  of  land  to  his  wife,  on  account  of  her  not 
being  a  person.  Now  she  has  personal  rights.  But  the  courts  in 
Massachusetts  still  adhere  to  the  old  law.  This  leads,  when  the 
husband  wishes  to  give  real  estate  to  his  wife,  to  the  clumsy  device 
of  his  conveying  the  estate  to  a  third  person,  who  immediately  con¬ 
veys  the  same  estate  to  the  wife. 

The  present  state  of  the  law,  as  it  bears  on  the  marriage  relation, 
is  chaotic  and  inconsistent.  We  have  abandoned  the  old  theory  of 
the  common  law,  which  regarded  every  married  woman  as  incompe¬ 
tent  to  take  charge  of  her  own  person  and  property,  and  placed 
her  in  perpetual  tutelage  to  her  husband,  as  if  she  were  a  non  com¬ 
pos  or  a  child.  But  yet  the  statutes  have  only  partially  endowed 
her  with  competency,  leaving  her  free  movement  impeded  at  every 
step. 

The  only  remedy  for  this  state  of  things  is  to  create  perfect 
equality  in  every  respect  between  husband  and  wife.  Let  her  have 
the  same  charge  of  her  person  that  he  has  of  his,  the  same  indepen¬ 
dent  right  to  her  property  that  he  has  of  his.  Let  her  have  the 
same  legal  right  of  making  contracts,  and  doing  all  acts,  that  he  has, 
and  that  all  maids  and  widows  have.  Let  his  independence  be  the 
measure  of  hers.  When  either  dies,  let  the  claims  of  the  survivor 
on  the  estate  of  the  deceased  be  the  same. 

So,  in  regard  to  suffrage  and  every  other  right  and  privilege  of 
men,  let  women  be  made  equal. 

The  great  difficulty  to  be  overcome  in  effecting  the  complete 
emancipation  of  women  is,  not  that  most  men  are  unwilling  to  do 
complete  justice  to  the  sex,  or  that  the  majority  of  women  care 
nothing  for  this  object ;  but  it  is  simply  a  superstitious  dread  lest  a 
change  so  radical  should  unsettle  all  the  foundations  of  society, 
and  bring  down  the  whole  fabric  in  ruins.  The  history  of  the 


OF  WOMEN  IN  MASSACHUSETTS . 


15 


great  legal  reforms  which  have  been  accomplished  in  our  genera¬ 
tion  shows  how  idle  is  this  fear.  We  need  never  doubt  the  prac¬ 
tical  operation  of  a  great  reform  in  a  community  like  ours,  where 
it  is  based  on  a  sound  principle.  Two  great  rules  of  evidence 
pervaded  the  common  law  :  the  first,  that  no  person  could  be  a 
witness  in  his  own  case ;  the  second,  that  no  person  having  a  pecu¬ 
niary  interest  *in  the  result  of  a  suit,  be  it  ever  so  small,  could  be  a 
witness  for  the  party  whose  success  would  benefit  him.  The  sound¬ 
ness  and  importance  of  these  rules  were  acknowledged  by  bench 
and  bar.  They  were,  however,  assailed  with  overwhelming  logic  by 
Bentham  and  his  followers.  The  result  we  see.  Within  a  few 
years,  both  rules  have  been  very  generally  abrogated.  Now,  a  per¬ 
son  can  be  a  witness  for  himself,  and  any  one  interested  in  his 
favor  can  also  be  a  witness  for  him  in  any  civil  suit ;  and  a  person 
charged  with  crime  can  testify  in  his  own  favor.  Even  a  woman 
can  now  testify  for  or  against  her  husband,  and  he  for  or  against 
her.  Though  it  was  predicted  that  great  evils  would  flow  from 
these  changes,  it  is  certain  that  truth  and  justice  have  been  wonder¬ 
fully  promoted  by  them. 

So  the  great  and  fundamental  changes  already  stated,  which 
have  recently  been  made  in  regard  to  the  laws  affecting  married 
women,  violently  as  they  were  resisted,  are  now,  as  is  admitted  by 
many  of  their  former  opponents,  producing  an  amount  of  good  which 
it  is  difficult  to  over-estimate,  and  no  evil. 

The  next  step  which  is  to  relieve  woman  from  all  remains  of 
feudal  oppression,  and  restore  her  to  the  equality  with  man  with 
which  nature  endowed  her,  is  far  less  difficult  than  the  one  already 
taken. 

When  men  and  women  are  made  equals  in  the  eye  of  the  law,  \ 
and  not  before,  shall  we  complete  the  foundations  of  a  just  common-  l 
wealth,  which  were  laid  by.  the  Puritans,  and  strengthened  by  the  f 
Declaration  of  Independence.  Then  we  may  hope,  by  the  united 
action  of  both  sexes,  to  regenerate  the  republic,  and  make  it  an 
example  for  the  world  and  future  ages.  The  experiment  of  a  re¬ 
public  based  on  equal  rights  can  never  be  fairly  tried  while  one- 
half  of  the  adult  population  remains  an  inferior  caste,  with  no  voice 
in  the  government. 


THE  NEW  ENGLAND 


CONSTITUTION. 

1.  Believing  in  the  natural  equality  of  the  two  sexes,  and 
that  women  ought  to  enjoy  ^the  same  legal  rights  and  priv¬ 
ileges  as  men  ;  that  as  long  as  women  are  denied  the  elec¬ 
tive  franchise  they  suffer  a  great  wrong,  and  society  a  deep 
and  incalculable  injury  ;  the  undersigned  agree  to  unite  in 
an  Association  to  be  called,  —  “The  New  England 
Woman’s  Suffrage  Association.” 

2.  The  object  of  this  Association  shall  be  to  procure  the 
right  of  suffrage  for  women,  and  to  effect  such  changes  in 
the  law  as  shall  place  women  in  all  respects  on  an  equal 
legal  footing  with  men. 

3.  The  officers  of  the  Society  shall  be  a  President,  Vice 
Presidents,  a  Treasurer,  a  Corresponding  and  a  Recording 
Secretary,  and  an  Executive  Committee  of  not  exceeding 
fifteen  persons,  besides  the  President,  Secretaries  and 
Treasurer,  who  shall  be  members  ex  officio .  All  the 
officers  shall  be  chosen  at  the  annual  meeting,  to  continue 


in  office  for  one  year,  and  until  others  are  chosen  in  their 
places. 

4.  Any  person  may  be  a  member  of  the  Association,  by 
the  payment  of  an  annual  contribution  to  its  funds,  or  a 
life  member  by  the  payment  of  Twenty  Dollars. 

5.  The  President  shall  preside  at  all  meetings  of  the 
Society,  or  in  his  or  her  absence  the  senior  Vice  President 

6.  The  Treasurer  shall  collect  and  take  charge  of  the 
funds,  make  all  payments,  and  keep  regular  accounts,  to 
be  audited  by  the  Executive  Committee. 

7.  The  Recording  Secretary  shall  keep  the  records ; 
and  the  Corresponding  Secretary  shall  conduct  the  corres¬ 
pondence  of  the  Association. 

8.  The  Executive  Committee  shall  manage  the  business 
of  the  Association,  may  elect  honorary  members,  call 
meetings  of  the  Society,  prepare  petitions  to  the  legisla¬ 
ture,  issue  publications,  and  employ  lecturers  and  agents, 
and  take  any  measures  they  think  fit  to  forward  the  objects 
of  the  Association,  and  may  fill  all  vacancies  that  occur 
prior  to  the  annual  meeting. 

9.  The  annual  meeting  of  the  Association  shall  be  held 
on  such  day  in  the  last  week  in  May,  in  Boston,  and  at 
such  hour  and  place,  and  be  called  in  such  manner,  as  the 
Executive  Committee  may  appoint. 


OFFICERS 


PRESIDENT. 

JULIA  WARD  HOWE,  Boston. 

VICE  PRESIDENTS. 


William 'Lloyd  Garrison,  Boston. 
Paulina  W.  Davis,  Providence,  R.I. 
James  Freeman  Clarke,  Boston. 
Sarah  Shaw  Russell,  Boston. 

John  Neal,  Portland,  Me. 

Lucy  Goddard,  Boston. 

Samuel  E.  Sewall,  Melrose. 

Lidian  Emerson,  Concord. 

John  Hooker,  Hartford,  Ct. 


Mrs.  John  Hooker,  Hartford,  Ct. 
Harriot  K.  Hunt,  Boston. 

James  Hutchinson,  Jr.,  West  Ran¬ 
dolph,  Vt. 

Armenia  S.  White,  Concord,  N.H. 
Louisa  M.  Alcott,  Concord. 

L.  Maria  Child,  Wayland. 

John  Weiss,  Watertown. 


CORRESPONDING  SECRETARY. 
SARA  CLARK,  Boston. 

RECORDING  SECRETARY. 
CHARLES  K.  WHIPPLE,  Boston. 


TREASURER. 

E.  D.  DRAPER,  Boston. 
EXECUTIVE  COMMITTEE. 


Lucy  Stone,  Newark,  N.J. 

T.  W.  Higginson,  Newport,  R.I. 
Caroline  M.  Severance,  West  New¬ 
ton. 

Francis  W.  Bird,  East  Walpole. 
Mary  E.  Sargent,  Boston. 
Nathaniel  White,  Concord,  N.H. 
Richard  P.  Hallowell,  Boston. 
Stephen  S.  Foster,  Worcester. 
Sarah  H.  Southwick,  Grantville. 
Rowland  Connor,  Boston. 


B.  F.  Bowles,  Cambridge. 
George  H.  Vibbert,  Rockport. 
Olympia  Brown,  Weymouth. 
Samuel  May,  Jr.,  Leicester. 
Nina  Moore,  Hyde  Park. 

Ex  Officio : 

Julia  Ward  Howe,  Pres . 

Sara  Clark,  Cor.  Sec. 

C.  K.  Whipple,  Pec.  Sec. 

E.  D.  Draper,  Treas . 


WOMAN’S  SUFFRAGE  TRACTS. 


No.  I.  Henry  Ward  Beecher  :  Address  at  the  Cooper  Institute,  New 
York,  Feb.  2,  1860. 

No,  2.  George  William  Curtis  :  Speech  in  the  New  York  Constitu¬ 
tional  Convention,  July  19,  1867. 

No.  3.  John  Stuart  Mill:  Speech  in  the  British  Parliament,  May  20, 
1867. 

No.  4.  Thomas  Wentworth  IIigginson  :  “  Ought  Women  to  Learn 
the  Alphabet From  “The  Atlantic  Monthly/'  February, 
1859. 

No.  5.  Samuel  E.  SEWALL:-“The  Legal  Condition  of  Women  in 

Massachusetts. 

For  sale  by  C.  K.  WHIPPLE ,  43  Bowdoin  Street ,  Boston. 

Price ,  5  cents ,  singly ;  $4  per  hundred. 

Single  copies  will  be  sent  by  mail  on  receipt  of  the  price  and 
postage  ;  or  three  for  20  cents ,  free  of  postage . 


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